Garland Robinette

Garland: Should the bombing suspect be Mirandized?

by Garland Robinette,posted Apr 22 2013 1:31PM

There has been much debate about whether the hospitalized suspect in the Boston bombings should have been given his Miranda warnings as soon as possible. As we have seen in other terrorism cases, the knee-jerk reaction by the public and government alike is often to take measures that erode away at our protections guaranteed by the Bill of Rights.

Such is the case, once again. The FBI and DOJ say they are using the “public safety exception” as a legal way to interrogate the suspect without advising him of his Miranda rights to remain silent and his right to an attorney. I was joined today by Alan Dershowitz, one of the most renowned attorneys and legal scholars in the nation to discuss the case.

First off, what is the “Miranda warning?” In the1966 case of Miranda v. Arizona, the U.S. Supreme Court laid out six very specific warnings that police must give suspects in a custodial situation before they are interrogated: "The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him."

There are a few valid exceptions to the Miranda requirement, with the public safety exception (‘PSE’) being one of them. The 1984 case of New York, v. Quarles, the Supreme Court carved out this exception for situations “where concern for public safety must be paramount to adherence to the literal language of the prophylactic rules enunciated in Miranda." The court ruled that for statements gathered under the PSE to be later admissible in court, the questioning must involve a scenario "in which police officers ask questions reasonably prompted by a concern for the public safety."

Many of our listeners, and quite a few public officials, have said over the last week that the suspect not only should not be Mirandized, but actualy deserves NO typical constitutional protections, and should be tried by a military tribunal as an ‘enemy combatant.’ However, Dzhokar Tsarnaev is an American citizen accused of setting off bombs and murdering a police officer on American soil. Obama’s DOJ has repeatedly said that terror suspects arrested inside the U.S. should be handled within our criminal justice system. And, the White House announced today that there will not be a military tribunal.

Dershowitz told me in no uncertain terms that investigators should read the bombing suspect his rights as soon as possible in order not to jeopardize the case.

“They should give him his Miranda warnings, because there’s no public safety exception that’s applicable here,” Dershowitz said. “The police have told the people of Boston, ‘go about your business, we’ve got the two suspects, there are no bombs around.’ The public safety exception is designed not to gather information to prevent future crimes, but for immediate ticking-bomb situations.”

There appears to be a large amount of evidence implicating the two brothers in the bombing, including videos and photos. So, what’s the worry with not Mirandizing them right away?

“The reason is because they have to prove intention. It’s not enough to prove that he planted the bombs in order to be convicted of federal terrorism, which carries the death penalty,” according to Dershowitz. “They have to be able to prove that he intended to commit an act of terrorism. They may get that information from his statements that are un-Mirandized, and the courts may keep them out. This may deny them the death penalty.”

And, Dershowitz told me that it sets a very bad precedent.

“I think it expands the PSE beyond where it was intended by the courts, and it basically shows contempt for our constitutional rules, and an attempt to circumvent the Constitution. We can prosecute this man within the Constitution and within the Miranda rules, and I think we can do it successfully.”

I also asked Dershowitz why should we should be worried about a suspected terrorist's Miranda rights, when persons summoned before a federal grand jury in ANY case have zero rights.

"Well, it’s a terrible rule…They were never intended to be that by the framers of the Constitution. You have no rights in front of a grand jury,” Dershowitz said. “You don’t have a right to a lawyer in front of a grand jury. It’s awful, it’s really an inquisition.”

Yes, because the accused is a citizen, but even if he were not, I would argue that it is better to err on the side of the Constitution, showing the world that we are better than countries which have fewer freedoms.

04/22/2013 4:17PM

Karen J. Williams Mandeville, LA

Mirandize him now so you don't give them an opportunity for a mistrial. Do it by the letter of the law.